| People v Hohl |
| 2012 NY Slip Op 02320 [93 AD3d 859] |
| March 27, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Richard Hohl, Appellant. |
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Kathleen M. Rice, District Attorney, Mineola, N.Y. (Yael V. Levy and Monica M. C. Leiterof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (McCartyIII, J.), rendered December 14, 2010, convicting him of reckless endangerment in the seconddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court's charge with respect to the countof reckless endangerment in the second degree was proper, as it was in accordance with thelanguage contained in the New York Criminal Jury Instructions (see CJI2d[NY] PenalLaw § 120.20; People vProspect, 50 AD3d 1064 [2008]; People v Lubrano, 43 AD3d 829 [2007]; People v Pedro, 36 AD3d 832[2007]; People v McDonald, 283 AD2d 592 [2001]; see also People v Joseph,253 AD2d 529 [1998]).
The defendant's contention that the verdict was inconsistent to the extent that the jury foundthe defendant guilty of reckless endangerment in the second degree, but acquitted him of assaultin the third degree, is without merit. When there is a claim that inconsistent jury verdicts havebeen rendered in response to a multiple-count indictment, a verdict as to a particular count shallbe set aside only where the verdict is inherently inconsistent when viewed in light of the elementsof each crime as charged to the jury without regard to whether the instructions were accurate(see People v Green, 71 NY2d 1006 [1988]; People v Tucker, 55 NY2d 1, 7-8[1981]). Review of the entire record or even of the language of the indictment is inappropriate(see People v Tucker, 55 NY2d at 4; People v Strickland, 78 AD3d 1210 [2010]).
Here, the Supreme Court charged that, in order to convict the defendant of recklessendangerment in the second degree, among other things, the jury must find that the defendantengaged in conduct that "created a substantial risk" of serious physical injury to the victim, whileit also charged that, to convict the defendant of assault in the third degree, among other things,the jury must find that the defendant "caused" actual physical injury to the victim. There is noinherent inconsistency in the verdict because the jury could have found that the defendantengaged in conduct that created a substantial risk of serious physical injury to the victim, but thathe did not actually cause the victim's physical injury.[*2]
The defendant contends that the Supreme Court's failureto inform the jury as part of its final charge that the indictment was not proof of anythingrendered the charge insufficient or a violation of due process. This contention is without merit.The Supreme Court explicitly stated in its preliminary instructions that the indictment was notproof of the defendant's guilt of any crime, and also gave explicit instructions to the jury, bothduring jury selection and in its preliminary instructions, with respect to what materials and itemsconstituted the evidence upon which they were to base their verdict. While the Supreme Courtdid not specifically state in its final charge that the indictment was not proof of anything, thecharge, taken as a whole, adequately instructed the jury as to the fundamental legal principlesapplicable to criminal cases in general and the material legal principles applicable to thisparticular case (see CPL 300.10 [2]; People v Bogan, 78 AD3d 855 [2010]; People v Brown,209 AD2d 428 [1994]). The fact that the Supreme Court may not have used the precise wordingrequested by the defendant did not invalidate the court's charge or violate the defendant's dueprocess rights (see People v Levy,15 NY3d 510 [2010]; People v Samuels, 99 NY2d 20 [2002]; People vGreaves, 94 NY2d 775 [1999]; People v Dell'Aera, 84 AD3d 1109 [2011]).
The defendant's remaining contention is without merit. Dillon, J.P., Florio, Chambers andLott, JJ., concur.